What age can a child decide which parent to live with in NC?
There is no magic age number when a child can decide who to live with under North Carolina law. When a child turns age 18 and becomes an adult they can choose to live wherever they want, but before then a judge can dictate where that child must live.
Can children tell the Judge who they want to live with?
A judge may talk to a child in chambers under NC law if both parents to the custody action consent. If one party objects then the only way the judge can hear directly from the child is if one parent calls the minor child to the witness stand to testify under oath. Be aware that even if all parties consent the judge can refuse to speak with minor children in chambers. Many judges do not feel it is appropriate to bring a child into the courthouse unless it absolutely necessary as young children often express to the judge in chambers they want to spend equal time with both parents and wish they could be a family again. In addition a judge is not going to come out and directly ask a young child who they want to live with instead they often ask questions such as the following:
My child wants to live with me
Children often tell both parents they want to live with them at times. Children usually want to please their parents and they often wish they could live with both parents as a family so in their mind there is no inconsistency. Just because your child says they want to live with you full time and they want to tell that to a judge does not mean they will actually say that to a judge in private.
Will a judge listen to a child in NC?
No judge is bound by the wishes of a child in determining custody under North Carolina law. It is important to know your judge in deciding whether to have your child in court. Sometimes bringing a young child can backfire on a parent if the judge feels that parent has coached or influenced the child. Parental alienation does exist and if your child is adamant they want to live with you the other parent or attorney will be arguing that in court. What weight a judge gives to wishes of a child is merely a part of determining what is in the best interest of the child.
Griffin v. Griffin, 81 N.C.App. 665 (N.C.App. 1986)
The court awarded custody to father despite the children expressing a desire to live with the mother. The court cited case law in stating the “wishes of a child of sufficient age to exercise discretion in choosing a custodian are entitled to considerable weight when the contest is between the parents, but these wishes are not controlling.” In denying the request of the children the court found both parents attempted to manipulate the children and therefore discounted their desire to live with mother.
At what age will a judge listen to a child in NC?
There is not specific age when a child “knows” what is in their best interest. Some children are mature enough to have a reasoned opinion at age 10 and some certainly are not. The wishes of a 5 year old are not going to be given much weight under most circumstances. The wishes of a 16 year likely are going to be considerable weight assuming the desire of the teenager is based on pure motives.
Can a 15 year old choose which parent to live with?
The older the child the more weight the judge is likely to give to their wishes as they are theoretically of an age to better understand the consequences of their decision. The other main reason is a teenager can make the life of parent a living hell by running away and being disobedient if they so choose. Imagine keeping a child with a car from driving to see the other parent if that is where they want to live.
Kowalick v. Kowalick, 129 N.C.App. 781 (N.C.App. 1998)
The court found a 13 year girl had a strong desire to live with her mother and constituted a substantial change of circumstance to modify custody to be with mother. In so doing the court found the child was "of suitable age and maturity to express a preference as to where she should reside and has consistently desired to live with her mother since the spring of 1996," and that the child had "indicated her strong desire to live with her mother and indicated that she would be extraordinarily unhappy if the court did not recognize her request and that she would continue her efforts to try to live with her mother."
Can children testify about where they want to live?
Any competent witness may testify in court and this can include children. There is no minimum age a witness must be to testify, but calling a 5 year old to the stand is often counterproductive and potentially stressful for that child. Also- calling a child to the stand to have them say they want to live with one parent over the other puts that child in a no-win situation because they are invariably going to disappoint one parent.
Can a child refuse to go to visitation in NC?
Practically speaking an older child could certainly refuse visitation by fighting or running away. The police are not going to drag your kid from one parent’s house to the other unless specifically ordered to do so by a Judge which is rarely done because it would likely do more harm than good. That being said, the custodial parent opens themselves up to a contempt motion for failure to abide by a visitation schedule in a court order. At a contempt hearing the judge is likely to ask the offending parent why the child does not want to visit the other parent. Assuming there is no good basis such as abuse at the other home the following criteria are likely to be used in determining whether that parent should be held in contempt of court.
At what age can a child stop visitation with the non-custodial parent?
There is no magic age under North Carolina law when a child can unilaterally stop visitation pursuant to a valid court order. Just as a child can’t choose who they want to live with they can’t choose whether they have to abide by a visitation schedule with a parent they don’t want to see.
Can a parent be punished for not forcing visitation?
A party can be held in contempt for willful violation of a court order. This willful violation can include not doing enough to make sure visitation happens as ordered by the court. There is a fine line between a parent violating a visitation order and the child actively resisting visitation to the point the parent can’t compel visitation.
Hancock v. Hancock, 122 N.C.App. 415 (N.C.App. 1996)
The court found insufficient evidence to support a finding that mom willfully refused to allow father visitation with the child. The court finds there must be a showing that the custodial parent deliberately interfered with or frustrated the noncustodial parent's visitation before the custodial parent's actions can be considered willful. In this case the mother actively encouraged the child to visit the father and did everything short of physical force or threat of punishment, but the child simply refused to cooperate.
Baines v. Baines, 738 S.E.2d 829 (N.C.App. 2013)
The court found the mother in contempt for denying the father visitation with the child. The mother argued she did so under concern for the safety of the minor child, but the court still found she violated the order.
Can a child refuse court ordered visitation in NC?
A child is not free to decide whether or not they have to visit a parent- the court order controls- not the child. That being said, a child is not going to be held in contempt, but a parent who willfully allows this to happen certainly can be held in criminal or civil contempt of court.
Can a child be forced to visit a parent?
A judge can order a child to visit with a parent against their wishes. How this is accomplished practically can sometimes be a nightmare depending on the age and determination of the child to resist. Before a child is ordered to visit a parent they do not want to see under any circumstances a judge may order such visitation initially take place at a therapist’s office to minimize the stress on the minor child.